Understanding and Responding to the Draft Constitution

To help citizens of Kenya read and understand the Harmonized Draft Constitution published by the Committee of Experts, and formulate comments and suggestions

Produced by the Katiba Sasa! campaign

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Section 1 - Introduction: The Principles Civil society organisations, working with Creco, have proposed some principles as guides for evaluating the new constitution and the process of making it, in a “Score Card” for the new constitution. Principles 1 and 3 are about the process (about access of all Kenyans to participation and about everyone working harmoniously towards a new constitution; you could say that this publication is itself a contribution towards achieving these. It deals primarily with the content of the Draft Constitution of the Committee of Experts; though it also touches on participation of the people in the process, particularly, at this stage, the review of the Draft. It is intended to guide wananchi in analysing and reacting to the Draft. Below we list the principles for evaluating for the content of the constitution, and indicate how the Draft meets them, and where in this publication you can find further detail: The principles The Draft For more, see in this publication Principle 2: the constitution must secure the Based on Bomas with Section 3 on gains in the earlier constitutional process some changes, and “Clear including would provide for a departures” o being a complete departure from very different system of government and the current constitutional order governance. o building on the progressive Values and principles, aspects of the earlier drafts and rights o providing a sound basis for progressive legislation Principle 4: the constitution must respect the There are many Section 14 on diversity of the Kenyan people provisions on rights of Diversity, 11 on o recognising the minorities and minorities, Gender and 12 on marginalised Disability the marginalised communities and o recognising persons living with groups, persons with disability disability and women, o enhancing gender equity and a chapter on culture equality o recognising diverse communities and languages Principle 5: the constitution must be founded Chapter 3 is on values, Box on next on certain values: accountability, trust, and is echoed in the page, and integrity, equity, representation, inclusivity, more legally effective Sections 10 on particularly by: other chapters Human Rights o providing for national values and and 13 on Accountability principles to guide policy etc o providing a policy framework for national leadership Principle 6: the constitution must promote See note on Principle 4 Section 6 on national cohesion, dialogue and tolerance above. Equitable Devolution and o recognising diversity distribution of 14 on Diversity resources is prominent o providing for equitable in the chapters on distribution of resources Devolution (14) and o establishing a credible Public Finance (15) mechanism for conflict management 1

o providing for minorities and disadvantaged groups Principle 7: the constitution must respect universal principles of human rights and rule of law o being based on social justice o including a clear and justiciable and enforceable bill of rights including: political, socioeconomic, cultural and group rights o reflecting human rights not just in the human rights chapter but in all chapters Principle 8: the constitution must ensure separation of powers and checks and balances, providing o for clear independence of the three branches of government o for sanctions against abuse of power o for independent and effective institutions o mechanisms for vetting appointments o mechanisms for impeaching holders of public office o for ministers to be drawn from outside the National Assembly Principle 9: the constitution must enhance fair and equitable distribution of national resources and opportunities o ensuring devolution of power o providing a framework for equitable distribution of resources and opportunities o providing a clear framework for combating discrimination Principle 11: there must be a preamble that enshrines the spirit of the constitution Principle 10: the constitution must be implemented for the good of the people

There is a full and justiciable Bill of Rights including economic social and cultural rights (Chapter 6) Values of diversity, accountability and participation are prominent in chapters on governance also. Within the largely parliamentary system, there are checks and balances, provisions for sanctions, guidance to office holders, provisions for fair removal procedures (and for vote of no confidence in the Prime Minister and government). About half Cabinet may be drawn from outside Parliament. There is devolution of Power (Chapter 14), stress on equitable distribution of resources (Chapter 15) and many provisions on discrimination (Chapter 6). Preamble is identical to Bomas. This depends largely on what happens after adoption – but there are provision designed to ensure implementation.

Sections 10 on Human Rights, 13 on Accountability and 8 on Representation and Participation

Section 4 on System of Government, 5 on State President and Prime Minister, 7 on Parliament and 13 on Accountability

Section 6 on Devolution, 10 on Human Rights

Box on next page Section 16 on Implementation and Constitutionalism

These principles very closely match the principles and the objectives of review in the Acts of Parliament about constitutional review which were applied in the earlier process leading to 2

the Bomas draft, and the current process which has led to this draft. Those principles and The Vision and Values of the Draft The Draft has a vision of a nation united in common loyalty to the country and in social solidarity, and cherishing the diversity of its people. In that national vision: • The people participate actively in government and public life in various ways and at all levels • Parliament is more representative of the People, more accountable to the People and able to play a more active role in decision making and in holding Government accountable • Power is spread more widely to prevent too much accumulating in a few hands • Organs of Government are accountable to the people and the law • All groups, communities and individuals (including women, people with disabilities, the elderly and the young) are – and feel that they are – equally valued and have equal rights • Human dignity is respected and human potential can be fulfilled • Public life is guided by ethical principles and a sense of responsibility to the nation, and corruption is a thing of the past • Political disagreement is expressed peacefully and cooperation is valued • National resources, including land, are used responsibly and their benefits shared equitably • Government is required and the community are able and encouraged to concentrate on the task of national development The values of the Draft that support that vision underlie all the provisions and are found explicitly : In the Preamble that stresses (among other values): • diversity • democracy and human rights • environmental protection . and in chapters 1 and 3 which stress particularly: • sovereignty of the people • participation of the people and the role of civil society • participation of women and persons with disability • eradicating corruption • the family • social justice and basic needs • equal development • international peace and African unity objectives were also the outcome of deliberation involving civil society.

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Section 2 - Responding to the Draft The people have 30 days from publication of the Draft to make and submit their comments – that is until 17th December. This is not long, so they will have to focus on the issues that are of importance to them. This process is a matter for individuals and organisations, and wananchi should not allow themselves to be dictated to. However, especially if you believe that the Draft is in general worth supporting, you might find it helpful to think about it in the following way: • don’t focus too much on the particular words but on what the Draft tries to do – but do support experts who genuinely want to improve the effectiveness by improving the language (even if you are a strong “Bomas” supporter, you will realise that improvement is always possible); if you are going to make comments to the Committee of Experts (CoE), do not hesitate to praise those aspects that you believe are good. You will know that there are people who would like to prevent any new constitution being made, and may exaggerate the criticisms, and it is important that the CoE (and politicians and others) know of the degree of support for the draft constitution; focus on the issues of particular importance to you and to the country; if you think something could be improved, indicate why, and if you have a concrete suggestion for improvement, do make it; it is not easy for the CoE to know how to respond to statements like “I don’t like this”; realise that a constitution cannot, and should not, provide the only agenda for the nation; it is a framework within which future governments will be chosen and operate – it is not a blueprint for everything those governments will do; whether there are any major contradictions within the constitution; and realise that no-one will be entirely satisfied with any constitution; there will be compromises.

• • •

How do you submit your suggestions? The CoE has said that suggestions can be mailed to P O Box 8703 Nairobi, delivered by hand to their offices at Delta House, Chiromo Lane, Westlands, Nairobi or sent by e-mail to info@coekenya.go.ke. You can send comments as individuals, groups, or organisations. What happens next? • The CoE is to study the reactions of the people and make any changes that are required to reflect the suggestions made (so long as these are sensible and workable); • Then the Parliamentary Committee will study the draft, and try to ensure that it reflects the national consensus, working with the CoE and the Reference Group from civil society; some revisions may take place; • The Draft then goes to the National Assembly, which may make changes (only if 65% of the NA supports the suggestions); • The Draft then goes to the people in a referendum and if the people approve it, the President must sign it within 14 days (and if he does not sign it, it automatically becomes law). (see a bit more detail on this process at the end of this publication)

If the Draft Constitution is rejected, Kenya will have to operate with the current Constitution – for how long?
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Section 3 - How far is the draft a clear departure from the existing constitutional order? The defects of the current constitution have been identified in the various submissions made to the CKRC in 2001-2, and in many other analyses, and some lie behind the civil society Principles that form the framework for this publication. We can summarise the main issues:
The main defects of the current Constitution • • Too much power concentrated in the hands of one person Too much power and decision making concentrated in Nairobi

• Inadequate accountability (of the President, members of parliament, officials generally, the police) • • • Inadequate prevention and control of corruption No guarantees of equal and fair use and distribution of national resources Inadequate recognition of Kenya’s diversity

• Inadequate recognition of the rights and concerns of vulnerable groups, including certain marginalised ethnic groups, and persons with disability • Discrimination against women – some positive discrimination even in the provisions of the constitution itself, and inadequate active protection of the rights • A limited, and outdated, conception of human rights and their potential for being the foundation of a more just society

The table below summarises the main differences between the Draft that has been presented by the CoE and the present Constitution and says where you would find them in the Draft, and where in this publication you will find more details.
Difference from the current Constitution There is no longer a President with all the powers normally associated with both the Head of a State and the Head of Government, but a parliamentary system with the Prime Minister as head of government, and a President (called the State President) with limited powers designed to give him a role as guarantor of constitutionality Instead of having all the powers of governments centred in Nairobi (and with a system of local government heavily controlled from Nairobi) there is a system under which 8 regions and 75 counties have their own systems of elected government with certain powers to make laws, and carry out government functions There is a second house of parliament – the Senate – which is designed to put some check on the activities of the first house, especially to protect the interests of the lower levels of government in the devolved system There is a fixed date for elections There is a clearer emphasis on equal representation in the National Assembly, and provision for representation of women and persons with disability Parts of Draft Chap. 12 Details in section(s) on 4. System of government 5. President and Prime Minister

Chap. 14

6. Devolution

Art. 125

7. Parliament

Art. 129 Arts. 126 and 128

7. Parliament 8. Representation and Participation

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Political parties may receive public funding, but must observe certain standards Non-party candidates can stand for election There is a limit on the number of Ministers and up to 10 may come from outside parliament Citizenship is equal for men and women, and in various ways fairer, and Kenyans may also hold another nationality There is a broader conception of human rights Particular rights include right to information, rights of the child, economic social and cultural rights Various provisions protect the rights of women Various provisions protect the rights of persons with disability The role of parliament is strengthened in various ways, and its activities are more transparent There are clearer provisions for accountability There are provisions for a stronger legal system –including independence of the judiciary and prosecutions There are provisions about the civilian control of police etc There are new measures designed to prevent and punish corruption There is explicit recognition of diversity There are provisions on fair use and distribution of resources Land and environment are the subject of various provisions There is a good deal of stress on national values The document itself is more people oriented, with a Preamble and organised so as to reflect the importance of the people Finally there are provisions for implementation of the constitution, and also provisions designed to protect the constitution from being undermined, and to ensure that its major provisions have “legal teeth”

Art. 114 to 120 e.g., Art. 127(1)(e) Art. 184 Chap. 4 Chap. 6 Arts. 52, 41, 61-8 e.g., Chaps. 6 and 11 e.g., Arts. 43 and 126 Chap. 11 Chap. 9+ Chap. 13 Chap. 17 Chap. 9+ Preamble, Chap. 3+ Chap. 8 and Chap. 15 Chaps. 7 and 8 Chap. 3 Whole Draft Chaps. 19 and 21, Art. 203

8. Representation and Participation 8. Representation and Participation 7. Parliament 9. Citizenship 10. Human rights 10. Human rights 11. Gender 12. Disability 7. Parliament 13. Accountability, impunity and corruption 13. Accountability, impunity and corruption 13. Accountability, impunity and corruption 13. Accountability, impunity and corruption 14. Diversity 15. Land, environment and resources 15. Land, environment and resources Box on p. 3 16. Implementation and constitutionalism

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Section 4 - System of government At the various stages of constitutional reform, the choice facing the country has been between: 1. a system with a single person as head of state and government, who is not chosen because his/her party wins the general election, but by national election of the individual (a presidential system) but with much strengthened checks and balances and accountability measures 2. a system under which the head of government is the person with the strongest support in the national assembly following the election (the parliamentary system), and with a head of state who has very few powers over which he or she has any choice; Kenya became independent in 1963 with a parliamentary system but it was soon abolished 3. some sort of mixture of the two other systems, for example: o a system where the president, as well as the prime minister has some governmental powers (as in France) o a system where the prime minister is an assistant to the president, rather than a person with principal responsibility for the running of government (rather as in Tanzania) Any of these could be very different from the current constitution, which results from the distortion introduced in 1964 when the presidential system was introduced, but a presidential system that gave most executive powers to the president, without checks and balances as found in most constitutions in the world. The Draft, like the Bomas draft, proposes the second system. The main justifications for adopting this are: • it is clearly different from the current system – which will help to develop new attitudes and ways of working, instead of going on in the same old way • the system is more collective – the focus is on the Cabinet as much as on the Prime Minister • because the real power is with the Cabinet as a collective body, the government will better reflect ethnic diversity than the presidential where ultimate power is with just one person • because the head of government always has the support of the majority in the National Assembly, there is less likelihood of stalemate between government and parliament – that may arise in a system where the head of government is directly elected by the people (though the Senate may have rather different loyalties from those of the National Assembly) • it is possible to separate the pomp and ceremony of government (mainly the business of the President) from the everyday task of governing (the responsibility of the Prime Minister and Cabinet) • it is arguably easier for “minority” candidates (perhaps including women) to become head of government in a parliamentary system than a presidential system • the usual method of ultimate control over a Prime Minister (a vote of no confidence) requires less of a process, is quicker and requires less support in parliament than the usual procedure for removing an executive president (impeachment).

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How do parliamentary systems work in practice? Parliamentary systems operate in India, Canada, Australia, the UK, Japan, Malaysia, Israel, New Zealand, Singapore, Germany, Italy, Spain, Scandinavian countries, and most other European countries except France and Portugal. South Africa and Botswana have parliamentary systems but without a separate head of state. People in those countries (except South Africa and Botswana) vote for a party, or for their chosen local candidate, knowing that their vote will help decide the formation of government. Their choices will be strongly affected by their views on the suitability of party leaders to become Prime Minister. But voters will also be influenced by the policy of the parties. In a system with many parties, many voters may know that the leader of their favoured party is most unlikely ever to become Prime Minister. But they will hope that their party will be invited to join the government and so able to influence government policies on the issues that concern them, or at least will be numerous enough to contribute to an effective parliamentary opposition.

You can read some more detail about the relationship between the State President and the Prime Minister in the Draft in a separate section: 5 - the State President and the Prime Minister. How does this system relate to the Principles? Unlike a classic presidential system, the executive is not clearly separated from the legislature: the executive requires the support of the legislature to remain in office, the Prime Minister (PM) must be a member of the legislature; but the judiciary is completely separate. But “checks and balances” are more important than “separation” – in fact complete separation is impossible if there are to be checks and balances. Checks and balances mean that one institution (e.g., the legislature) is able to review or even influence the decision of another (e.g., the executive). Checks and balances are stronger in this Draft than in the current Constitution: • The Draft gives greater independence of mind to the legislature (freeing it to some extent to check the executive) because: o There must be fewer Ministers than now (between 15 and 20, and Art 184 the same limits on Deputy Ministers); and o 10 of the Ministers might not be MPs at all. This means that fewer MPs will focus on becoming Ministers, or on carrying out ministerial responsibilities, and more on their parliamentary responsibilities. The Executive cannot count on the automatic vote of a large number of ministers but must persuade the MPs by the soundness of its policies o The Executive cannot hold the threat of dissolving parliament over Art 153 the MPs • So there is more chance of having a vote of no confidence • Parliament is stronger (and hopefully more effective) – see Section 7 on Parliament.

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Section 5 - State President and Prime Minister The Prime Minister is the Head of Government, and the State President is the Head of State (unlike the present system under which the President performs both functions). The limits on the powers of the Prime Minister are largely political (because the PM must work with other Ministers and because the National Assembly can remove the PM by a vote of no confidence). But the State President has powers strictly limited by the constitution. Thus, though a list of the powers of the Prime Minister is much shorter than that of the State President, the Prime Minister’s powers are far more extensive. We look first at the State President and his/her role, then the Prime Minister’s and then reflect briefly on the relationship between them. The State President The State President (SP) is conceived of as a guardian of the constitution, ensuring that the government complies with the constitution and its values, being a steadying influence on the “ship of state”, on behalf of the people, but without any role in making policy or running government. It would suit a senior person, not necessarily a politician. The SP is supposed to be above party and must not hold office in any political party. A person of integrity and moral authority could play a greater role than the powers in the constitution suggest – especially if the PM found that the SP was a valuable advisor. The SP is to be directly elected by the people (unusual for a “constitutional guardian” type of president), and can be removed only after an elaborate process of impeachment that would require the support of two-thirds of all the National Assembly and two-thirds of all the Senate. The role of the SP is shaped by the presidential responsibilities to: • • • • • Art 157(4)

respect, uphold and safeguard this Constitution; safeguard the sovereignty of the Republic; promote and enhance the unity of the nation; promote respect for the diversity of the people and communities of Kenya; and ensure the protection of human rights and fundamental freedoms and the rule of law. Art 156(2 ) 158(1 ) 158(3 ) 184(2 ) 205(1 ) 192(a) 158(4 ) 185(1 ) 186

The draft says that, unless the constitution provides otherwise, the SP acts on the advice of the Cabinet - which means he/she has no choice. On this basis the following are ceremonial or formal powers: • addressing the opening of each newly elected House of Parliament – setting out the government’s programme (this could be clearer) • making certain appointments (by which is meant that he or she signs the document formally appointing people, but the decision is made by others): including Ministers, Judges and Principal Secretaries

• • •

signing the documents that bring treaties into force dismissing Ministers (only if the PM requests, and then the SP must comply) dismissing the PM (only if there is a successful vote of no confidence) 9

• • • • •

conferring national honours pardoning convicted offenders, or reducing or postponing punishment declaring a state of emergency or war appointing commissions of inquiry and transmitting their reports to Parliament signing laws (unless he or she proposes reconsideration).

158(3 ) 172 158(5 ) 158(6 ) 140

There are certain functions (in fulfilment of the duty to ensure constitutionality) that may involve some degree of independence of action on the part of the SP: • • • • • • • annually addressing a special sitting of Parliament address the nation once a year, reporting on measures taken and progress achieved in the realization of the national values, principles and goals in the constitution publishing a report in the Gazette, giving details of these measures and progress made liaising with the PM to ensure that Kenya fulfils its international obligations and reporting annually to parliament on fulfilment of those obligations liaising with the PM to ensure that the courts, constitutional commissions and State officers and are able to secure their independence, impartiality, dignity, accessibility and effectiveness as contemplated in the Constitution checking that the constitutional requirements of consultation in law making have been complied with chairing the National Security Council (this is not made explicit, but no-one can control how another person chairs) Art 158(1) 158(1) (c)(i) 158(1) (c)(ii) 15 8 (7)(8) 15 8 (7)(b) 159(3) 15 7 28 2

It is perhaps not clear how the SP will fulfil some of these functions, especially without creating a risk of friction with the PM There are some situations where the SP does exercise some individual choice: • being Commander in Chief of the forces; this is not clear, because in many countries a (slightly misleading) provision in the constitution says the head of state is the Commander in Chief but this has no real significance. But the draft also makes the command of the individual service Chiefs “subject to the “powers of command of the SP”, which seems to indicate some “real” powers • proposing to the Cabinet a Bill for presentation to Parliament • referring a Bill passed by Parliament back for consideration (under the CKRC draft the President could have referred a Bill to a court for a ruling on constitutionality) • proposing the name of a person as Prime Minister (only if the person heading the largest party or the largest coalition is not acceptable to the National Assembly) • appointing the heads of the Chief of the Defence Forces and of the individual defence forces (after consulting the Defence Council) • and there are some appointments in which he may have some independent 10 Art 157(2) 285(3) 159(1) 14 0 180(3) 285(1) 158(3)

choice (though Parliament must also approve) - ambassadors, and various other office holders (there is some uncertainty in the wording of the Draft) the SP must be satisfied before a regional or country government can be suspended (though it is not stated that the SP actually suspends)

235

The Prime Minister The Prime Minister is the Head of Government. There is no division of responsibility on this between the SP and the PM (and in this respect the draft though clear in the details is less clear in some of its general statements). Government is supposed to be a rather collective affair with the Cabinet (comprising the PM and the Ministers) having the general duty of governing and being responsible as a collectivity to Parliament. A person can serve only 2 “terms” as PM and a PM can be removed from office only by a vote of no confidence passed by the National Assembly (formally the PM must then resign and if he/she does not do so must be removed by the SP) The PM: • selects Ministers and Deputy Ministers • may dismiss Ministers and Deputy Ministers • chairs the Cabinet and coordinates the work of the ministries • may propose the removal of a Principal Secretary within a Ministry (and that proposal must be acted on).

Art 179 187

Art 181(3 ) 186

184(2) 185(1) 179 192(b)

Relationship between the State President and the Prime Minister The Draft states that the PM must keep the SP fully informed about the affairs of government. And in some situations there is a requirement of “liaison” between these two principal officers of the state (see above). Most of the functions of the office of SP are exercised on the “advice of” the Cabinet. This is an old expression (it comes from the UK where it is still used to suggest deference to the monarch but is misleading about reality – the “advice” must be taken”). The PM chairs the Cabinet, but cannot presumably overrule his/her colleagues there; it is left to the Cabinet to decide on its own decision making process (except that the quorum is half the membership). In practical terms, the PM may have to include in the Cabinet, and co-operate with, ministers even from other parties, whose political support he may require to avoid votes of no confidence. A SP who is respected by the people and who establishes good relations with the Cabinet will be able to give, informally, guidance or advice to it, and may remind them of his responsibilities about diversity, unity and human rights.

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Section 6 - Devolution Kenya became independent with a system of “regional government”. There were to be 8 regions (including the Nairobi Area), and each region was to have an elected Assembly and Regional Executive. Each was to have the power to make laws on subjects including some aspects of education, health and agriculture. There were to be regional contingents of the police. And the regions were to be able to tax incomes of residents, impose land rates, and raise certain taxes. The regional governments would not have been very strong– but the system was abolished after one year (before it had started to work) at the same time as the Kenyatta government merged the roles of prime minister and head of state, and did away with the Senate. Local governments have been weak – and very much under the control of the national government. So power has been highly centralised. For many people their main contact with government has been with the Provincial Administration, with Provincial and District Commissioners, Chiefs and Assistant Chiefs, ultimately responsible to the office of the President. The Draft would abolish the Provincial Administration (though it envisages the Chiefs and Assistant Chiefs possibly coming under the new county governments). The Draft proposes a new system of devolution, which would empower local democratic bodies, would have flexibility so that more powers could be transferred to those local bodies, and would be characterised by cooperation between different levels of government. The main features of the proposals are: • • • • • • • • • • a system of Regional and County government with 8 regions and 70 counties stress on the need for cooperation between levels of government counties would have elected assemblies (with some members nominated by parties if necessary to ensure that there is at least one-third women and one-third men) each county would have an executive headed by a governor and deputy governor elected by the assembly, who could serve no more than 2 five-year terms up to one third of the members of the county assembly could be on the executive (appointed by the governor) county executives would have the functions of carrying out, at the county level, national laws, carrying out county laws each region would have an assembly elected by the county assembly members in the region (three from each county, drawn from the county council) each region would have a regional chief executive and deputy chief executive elected by the county council members in the region for Nairobi region there would be a mayor and deputy mayor directly elected by voters of the region regions would coordinate the activities of county governments, develop regional policies, develop regional infrastructure
Sch 1

Sch 7(10 )

Art 231 222 (1) (b) 223 223 (2) 225 216 217 219 215 Sch 4 Art 216, 227 228(4)

Both regions and counties would have power to make law (see box), but the national government can also make law on any subject. 12

The rules about how to deal with inconsistent laws on the same topic made by different governments are complex: 232(5) • Regional law prevails over inconsistent county law. • National law prevails over lower level law only in certain situations, e.g.: o setting national standards or policies 232(3) o the laws are necessary to protect national security or economic unity or protect the environment o or to prevent unreasonable acts by a region or county. 232(2) Two purposes can be served by this overlapping, but conditional, power to make laws: o if lower level governments fail to make law on a topic the national government can step in to avoid a vacuum o and the conditions ensure that the national government only makes law on matters are within the powers of the devolved governments if there is good reason. It would be a matter for the courts ultimately to decide whether one of these conditions applied to a particular law. On the financial side: • most of the resources for the counties and regions would come from national government (this is not stated but is clear from the financial provisions) • counties would be able to raise money by putting a local surcharge on some national taxes, having their own entertainment tax, agricultural tax, licensing fees for certain activities • there is no limit on the types of tax that the national government may raise • • regions would have no separate power to tax and would depend on the national government’s contributions the national government must make resources available to lower levels of government in an equitable manner, especially having a duty to see that counties are equally able to offer public services – this will involve giving more to counties that have fewer resources of their own

Sch 5(2) 5(1) (p) Art 247 248 235

A regional or county government (including the relevant assembly) could be suspended in case of internal conflict or after investigation by an independent commission of inquiry in other circumstances – implying incompetence or misconduct by the government. The Senate must authorise the suspension.
Activities of Counties Agriculture, including farming, livestock sale yards; abattoirs; disease control; fisheries. County health services, including local facilities and pharmacies; ambulance services; promotion of primary health care; licensing and control of food outlets; veterinary services; cemeteries etc., refuse removal and disposal. Control of air pollution, noise pollution, public nuisances and outdoor advertising. Various cultural and entertainment activities. District roads and transport. Animal control and welfare. Local markets, tourism etc. District planning and development, including statistics; land survey and mapping; boundaries housing. Education at pre-primary level (there is something missing in this entry – typographical error). Implementation of national government policies on natural resources and environmental conservation. District public works and services, including water and sanitation services. Police and fire services and disaster management. Control of drugs and pornography. Assisting local communities to get involved in governance and strengthening capacity. Activities of Regions Coordination, supervision, assistance and capacity building to and for counties Setting regional policies and standards 13 Regional planning Coordination and management of delivery of regional services

Section 7 - Parliament The draft constitution tries to ensure that parliament is more representative of the people, more accountable to the people and more able to take active role in decision making and in holding government accountable. For example, Parliament would be strengthened: • by reducing the number of Ministers and Deputy Ministers; there must be no more than 20 of each (or fewer than 15) thus trying to ensure that Parliament focuses more on law making and scrutinizing Government, and by making it impossible for the ruling party to “buy” the loyalty of a majority of MPs by offering them office. It strengthens this effect by providing that as many as 10 Ministers MPs may be non-MPs because the Speaker of the National Assembly must not be chosen from among the members of the house by giving Parliament and its committees the power to require any public office holder or private person to give evidence to it/them by requiring that many appointments be approved by the National Assembly including ambassadors, judges, the Attorney-General, the Controller of Budget, Auditor-General, Board of the Central Bank and the heads of the National Security Intelligence Service and the Police by increasing the power of Parliament to affect decisions on the national budget, by requiring that more notice and more information be given to Parliament by requiring that the head of government (the Prime Minister) be a person with the support of the majority of the National Assembly, support demonstrated by a vote by giving the National Assembly the power to pass a vote of no confidence, by a simple majority of all the members, which would result in the Prime Minister and his/her Cabinet leaving office by giving the National Assembly the power to pass a vote of no confidence in a Minister or Deputy Minister, with the consequence that that person must resign or be removed by the President by giving Parliament the power to remove the President by requiring that treaties must have the support of Parliament by requiring that a declaration of war have the approval of Parliament, as must a declaration of a state of emergency (after the first 14 days) by providing that Parliament cannot be dissolved except in a very few specified circumstances by clarifying the powers of Members of Parliament to introduce legislation (except Bills about public money) by providing that Parliament may insist that a law be passed even if the State President is opposed to it, and providing that if the SP fails to sign, it becomes law anyway (in the current constitution, and Bomas, overriding the President requires a two thirds vote) By formalising the role of the Leader of the Opposition. Art 184

• • •

133 148
158(3) 205, 264 265, 269 287, 291

• • • • • • • • • •

258 180 186 185(2) 170 158(4) 75 158 153 137 138 140

135

Parliament would be more open and accountable because: • Voters would have the power to remove (recall) members of either house – 14

Art

though a new law will be necessary for this. Members of the National Assembly would lose their seats if they miss 8 sittings of the house in a period (which is more demanding on members than the existing constitution which says that they lose their seat if they miss 8 consecutive sittings). But this provision is vague – what is a “period when the House is sitting”? Parliament must sit in public unless there is an exceptional reason.

131 130 (1)

149 125

Bicameralism There will be two houses of Parliament; the new one is the Senate that will represent the interests of the regions and counties. Each county would have 1 member, each region 2 women members, and each region another member who must be either a person with disability or a “youth” (aged between 18 and 35). County members of the Senate are elected by the relevant county assembly members. The responsibilities of the two houses are spelled out: • Any Bill about taxes and public expenditure laws would be submitted to the Senate, but if the Senate cannot agree then it could be passed on the basis of National Assembly support alone • Other laws must have the support of both the houses before they become law • In the case of a law affecting the interests of the regions and counties as such, members of the Senate vote in regional blocks, one vote per region, and twothirds of the blocks must approve the bill for it to become law (this presumably means 6 of the 8 regional blocks) • Otherwise Senators vote as individuals. The same voting rules apply for other decisions in the Senate. The Senate would have an important role if the State President was impeached: the National Assembly would decide if there is a case against the President, but the Senate would decide whether the case against him or her was proved, and that he should be removed.

139 (4) (5) (3) 146 146 170

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Section 8 - Representation and Participation of the People Elections The Draft does not make any fundamental change in the current electoral system for the National Assembly, particularly the “first past the post” system. The main differences would be: • • no more nominated members; all members would be elected in the National Assembly there would be one woman member for each county, and 7 members with disabilities, and 7 representing marginalized groups.
Art 126(1) 126(1)

There are, however, some changes in the management of elections including: • continuous registration of voters • regular revision of the roll of electors • use of transparent ballot boxes • counting at polling stations There is no significant change in the provision about the size of constituency; some departure from equality of voting power will be justified, as now, to ensure adequate representation for urban and sparsely populated areas. Parties

103(1) 112(1) 109(b) 109(c) 113(3)

Parties are both essential to the political and governmental process, and the source of many problems. Parties in Kenya have rarely been concerned with policies. They are vehicles to get into power, without discipline, and without stability. And there is a real danger that they are becoming instruments of ethnic consciousness and ethnic politicians. The Draft tries to deal with these issues in various ways by: • • • • • 114 setting out standards of conduct for parties 114(2) prohibiting parties formed on the basis of religion, language, ethnicity, gender or region 116 creating an independent Commissioner of Political Parties to register and supervise parties 120 requiring parties to produce regular accounts and have them audited by the Auditor-General and to submit annual reports of their activities to the Commissioner 119 requiring that there be a fund to be distributed among parties depending on their support, and on the number of women and members of marginalized groups among the successful candidates of each party (an incentive to be inclusive), to be used for election and campaigning expenses and civic education 107 removing a relic of the old one-party state, by saying that candidates for election do not have to be supported by a political party (though in order to stand as an independent candidate for the National Assembly or a county assembly a person must not have been a member during the preceding six months – to prevent disappointed aspirants for party nomination standing as independents) 115 to strengthen party cohesion, providing that a person elected as an independent (4)(5) joins a party, or a person who leaves the party for which he or she was elected, loses their seat (though not if there is a merger between parties, and only if the party secretary-general informs the Speaker).

16

Active participation A true democracy is not one that requires involvement of the people only once every five years when they cast their vote. The Draft does envisage active involvement of the people in the processes of government. 137 • There must be a process of consultation in law making, and there are various checks on this, including that it is a responsibility of the President (who signs laws) to check that there has been consultation. The Constitutional Court in South Africa has said that it may be prepared to hold that a law on which there has not been adequate consultation has not been constitutionally passed. 142 • There is an explicit right of members of the public to petition Parliament to pass or change a law, though a new law will be needed. 87(k) • The State is directed to encourage public participation in the management of the environment 52 • There is a right to information and a statement that the State must publish important information affecting the nation 49-51 • There are very full provisions in the right of the people to their own views, and to express those views, and also on the freedom of the media 53 • The usual right of association is important for the health of civil society, and there are provisions about o a fair system of registration of organisations that is independent of o government or political control 553(5) o the role of “civil society in governance and facilitation of its role in o 113(2)(g) ensuring the accountability of government” as one of the national values 31 o of the importance of civil society in enforcing human rights (and the possibility of organisations going to court to enforce human rights) 30 o the role of civil society in discussing reports of the government to international human rights monitoring bodies. 308 • The people may initiate an amendment of the constitution by “popular initiative”

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Section 9 - Citizenship A country is its citizens. But many of Kenya’s people have been excluded from full citizenship, for various reasons, or have been discriminated against. Most of the criticisms of the current constitution have been remedied in the Draft. Some of the notable provisions are: • • • • both men and women can pass citizenship to their children both men and women married to Kenyan citizens may become citizens even a person born outside Kenya is a citizen, provided that at least one parent is a citizen who was actually born in Kenya or chose to become a citizen a citizen who becomes, or has become in the past, a citizen of another country is entitled to be a citizen of Kenya as well – and it seems that the intention is that the reverse is to be true, namely that a person who becomes a Kenyan may retain a previous nationality, but this will require a new law citizens are entitled to identity cards and passports a child adopted by a Kenyan is entitled to take Kenyan citizenship there is a provision for the duties of citizens, outlining some of the responsibilities of citizenship, though this would not be a legally binding provision. 17(1) 18(1) 17(2) 2 1 14(b) 20(2) 24

• • •

18

Human rights The Draft includes a comprehensive set of human rights. We should note especially: • • • • full and clear rights for persons with disability full provisions on the rights of the child specific articles on the rights of youth and the rights of the elderly a long list of grounds on which there must be no discrimination, for example pregnancy, marital status, health status, disability, culture, dress and birth (none mentioned in the current constitution); in fact there must be no discrimination on “any ground” right to privacy, media freedom, right of access to information, consumer rights and a right to fair administrative action economic, social and cultural rights, including to health, food, water, housing, education, social security, environment, and language and culture. Art 43 41 40,39 37 48, 51,52 , 69,70 60-68

To ensure the full protection of rights, the Draft: • says that indirect, as well as direct, discrimination is prohibited – which means that what matters is not whether a person explicitly discriminated or even intended to discriminate, but whether the effect of their behaviour was discriminatory (e.g. a height requirement for a certain job may discriminate against women or a requirement of being a vegetarian may be a coded way to exclude non-Hindus) • says that the rights apply not just to protect the person against the state, but to protect people against violations by non-state actors • says that any limitations on rights must be justified in a democratic society, and no greater than is necessary to achieve the purpose • says that no law can justify torture, slavery, the right to a fair trial or a the ancient remedy for false imprisonment “habeas corpus” • since the courts, as state organs, are bound by the human rights, they must be constantly guided by those rights provisions as they apply and develop the law • provides that it is not only the person most directly affected by a violation of human rights who may go to court for a remedy (because that person may be too poor, ignorant or intimidated to go to court); other persons or organisations could go to court for them • provides that public institutions and officials have a duty to learn how to meet the needs of all sectors of society including the marginalized and powerless • provides that the state must not only carry out its duty under various treaties to report to international bodies on how it is carrying out its responsibilities to protect human rights, but must publicise its own report, and the comments of the international bodies, so that the reporting mechanism fulfils its true purpose of supporting the protection of human rights within the country • makes the Human Rights and Gender Commission a constitutional body, and requires that it have commissioners with special responsibility for gender, children, disability, basic needs and the elderly. To avoid having too many commissions, and to avoid problems of overlap (so that people would not know where to take their complaints) a decision was made to have only one Commission with rights responsibilities. 19

37(1)

29(1) 33(1) 34 29(1) 31(2)

36(5) 36(6)

76

Poverty, Basic Needs and Economic, Social and Cultural Rights Many people do not understand the idea of socio-economic rights. The main thrust of these rights is towards fulfilling the basic needs of the people: to value (m) in Article 13 of the Draft: “commitment to social justice and the realization of the rights of the people to basic needs…”. If a constitution cannot respond to the needs of the poorest sections of the community, can the people be expected to support it? But there is some hostility to and incomprehension of these rights; some people ask questions like “how can government have a duty to feed everyone or house everyone?” These rights appear in the International Covenant on Economic Social and Cultural Rights and in other treaties such as the Convention on the Rights of the Child, and in the years since these treaties were adopted (and Kenya is a party to them) the rights have been analysed and spelled out by courts, and international bodies in some detail. It is now clear that the main point of these rights is that people must be free to fulfil them for themselves. The state, and others, should not interfere with people’s rights to feed and clothe themselves and to live decent lives. Some rights require more state intervention, especially education (and there is a right to free and compulsory primary education). But the state must do more than stand aside: it must prevent infringement of these rights by others, and if necessary (for example in cases of extreme poverty or drought) must take positive steps. Clearly poor countries cannot feed every hungry person, but they can take steps to make it easier for people to feed themselves, and they ought to take advantage of suitable outside assistance as well. The Draft reflects international law and also the South African constitution and says that: • the State must observe and respect all rights (which means state action must not interfere with the rights, like without justification depriving people of water or livelihood) • the State must protect the rights – prevent others from interfering • the State must fulfil the rights – which would mean taking positive steps when necessary • and the State must realise the socio-economic rights progressively, and should take account of the vulnerability of groups in society; and • and it is for the State to show that it does not have the resources to fulfil the rights if this is its justification for failing to do so. Art 30(1)

30(2) 29(5) 29(5)

The courts in South Africa (and other countries) have been able to give some remedies for the victims of violations of socio-economic rights, and they should not be regarded as utopian “aspirations” or empty words, but a genuine tool for social justice. These rights are not only a matter of legal enforcement. They are an agenda for the state (and one that, as we have mentioned, the state of Kenya has accepted). The State (meaning the government and its servants and agencies) must constantly think about how its policies affect the welfare of the people, ensuring that their socio-economic rights are promoted. At the time of the budget preparation, government should take into account its obligations. The Finance Minister’s budget speech ought to include a statement on how the budget would contribute to realising those rights. The State President has among his obligations • reporting to Parliament on how the country is meeting its international obligations – which include commitments under human rights treaties including the International Covenant on Economic Social and Cultural Rights 20 158(8)

addressing the nation on fulfilment of the national goals and values

158(1)(c)

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Section 11 - Gender There are very many provisions in the Draft designed to protect the rights and interests of women, including: • • • • • • • • • • forbidding discrimination on the grounds of sex, pregnancy, marital status and birth (refers to whether a person was born in wedlock or not) stating clearly that women have the right to equal treatment including rights to equal opportunity in all fields stressing that everyone has equal rights to marry, during the marriage and in the case of divorce the right to health care includes the right to reproductive health care a duty on the State to have programmes (including affirmative action) for groups disadvantaged by discrimination special mention of women with disabilities equal rights to pass citizenship to children and to become a citizen or have one’s spouse become a citizen explicit values of the constitution include equal participation of women in all aspects of life and that no more than two-thirds of members of public bodies whether elected or appointed should be of the same sex use of the political parties fund to encourage parties to support women as candidates and to have no more than two-thirds of their executive bodies of the same sex various provisions about representation in Parliament including special seats for women in the Senate (2 from each region) and the National Assembly (1 from each county), a requirement that a law be passed to promote the representation of women in Parliament, and a general rule that not more than one-third of the National Assembly must be of the same sex requirements of certain number of women in the Parliamentary Service Commission and one woman advocate in the Judicial Service Commission a duty on the Judicial Service Commission to be guided in its work by the principle of gender equality (which you might argue means they should aim at having 50% women judges) a requirement that land policy should include elimination of gender disparity a requirement that land legislation recognise and protect matrimonial property including the family home, and the protection dependants of deceased persons including those in actual occupation of land (rather overlapping provisions). Art 37 38 42 62 37(4) 43(3) 17,18 13(2) (i)(j) 119
125, 126(1) 128 126(6)

• • • •

154(1) 210 211(2) 77 85

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Section 12 - Disability The Draft introduces a prohibition of discrimination on the grounds of disability (and also “health status”) and it preserves the Bomas article about the rights of persons with disability in which notable features are the rights to: • • Art 43

respect and to dignity access to education (integrated into society as a whole when this is compatible with the interests of those persons) • reasonable access to all public places and transport and to information and communications • to use of sign language Braille etc. (generally and there are specific references to legislation being available in Braille or other format, and to the use of sign language in Parliament) • participate in decision-making • equal rights to inherit, access, and manage property; and • fair and equal treatment and opportunities and the duty of the State to take necessary measures to ensure that these rights are enjoyed. There are other measures relevant to persons living with disability: • • • • a requirement that a law be passed to promote the representation of persons with disability in Parliament provision for 7 members of the National Assembly to be persons with disability and for each region to have one Senate member who is either a person with disability or youth; and requirement that law be passed to ensure that country assemblies are inclusive of persons with disability one of the commissioners of the Human Rights and Gender Commission must be “a person with disability who has knowledge and experience of and special responsibility for matters relating to disability”. 128(b) 126 125 222 76(3 ) 311

Disability is defined as including “any physical, sensory, mental, psychological or other impairment, condition or illness that has, or is perceived by significant sectors of the community to have, a substantial or long-term effect on an individual’s ability to carry out ordinary day-to-day activities”.

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Section 13 - Accountability, impunity and corruption There are many provisions in the Draft that are designed to guide persons in public life, and to prevent those with a corrupt record being involved in public life, and to ensure that the guilty do not escape punishment, as well as promoting accountability politically as well as legally. Transparency is a theme (even the word appears many times in the Draft), including: • • • Parliament must sit in public unless there is some exceptional reason “State officers” must declare their assets annually (and a register of those assets must be available for public inspection) improving “standards of competence, honesty, integrity and transparency in the public services” is a responsibility of Human Rights and Gender Commission (including as it does the “Public Protector” - like an Ombudsperson) the right to information. Art 149 97(1) 76 (4)(k) 52 94,96 98(1)

There is a lot, of guidance - perhaps too wordy - for those in public office about avoiding conflicts of personal interest with public duty etc. It includes the provision that State office holders must not have any other “gainful employment” (if this is defined in a common legal way it might mean only being an employee of someone – which would be too narrow, but one might say that to exclude someone from writing a novel would be too restrictive; perhaps some definition needs to be given). Provisions for audit of accounts are traditional in constitutions, but there are various changes in connection with control of public spending: • political parties are among the bodies that must have their accounts publicly audited • control of public spending should be strengthened by the division of the office of the Controller and Auditor General into two, one with the specific functions of monitoring expenditure as it occurs, and the other for audit after expenditure • there must be a legal framework for public purchase of goods and services that ensures fairness and punishes suppliers who default on their contractual obligations or taxes. There are many institutional changes and innovations including: • some strengthening of the independence of the judiciary • the requirement that all existing judges be subject to a vetting process, and that the process for replacing them be improved to ensure a new generation of judges in whom trust can be reposed; requirement that the existing Chief Justice either resign completely or go to the Court of Appeal • the creation of the Supreme Court to give leadership to the judiciary, and the Constitutional Court to interpret the Constitution • • making the office of Director of Public Prosecutions independent of the Attorney-General and of political control requiring the consent of the court before a prosecution can be withdrawn (to prevent the abuses of the past in relation to nolle prosequi) 24

120 264 265 261

198
Sch 7 (15)(4)

201 203 194
194(8)

• • •

making it clear that prosecution powers are not restricted to the DPP making pardons and sentence reductions for people who have been convicted of crimes a matter for an independent committee not political control; and creating the Ethics and Anti-Corruption Commission to investigate allegations, and to oversee the anti-corruption measures.

194(7)

172 99

Dealing with individuals who are suspected or have been found guilty is an important aspect: • there are detailed processes for investigation and removal • • any State officer who is convicted of an offence of involving breach of integrity rules loses their office and cannot hold any other State office; and no-one found guilty of abusing a State office or public office may be elected to Parliament or a regional or county assembly

e.g.196 291 96(5) 127(2) 236(2) 105 207 272 268 254(3)

Other important features include: • the requirement that various codes of practice be drawn up and observed (for candidates, public servants, judges etc.) • • • • salaries of State officers (including MPs) and public officers are to be fixed by an independent commission no law may exempt State officers from payment of taxes the various ways in which the powers of Parliament have been strengthened, and the accountability of parliament to the people strengthened (see sections on Parliament and on participation); and some provisions for accountability of the security forces, including the obligation to observe human rights.

280 281

It is important to note that the main provisions of Chapter 9 on Integrity apply only to “State offices” which include the State President, Prime Minister, Ministers, MPs, AttorneyGeneral, Auditor-General, judges, service commanders, members of regional and country assemblies and executives. It does provide that the law can extend similar provisions to public officers more broadly.

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Section 14 – Diversity and Inclusion Apart from the provisions on gender and disability, there are various other provisions about diversity, especially about “marginalised communities” and “marginalised groups”. There is also mention of minorities who are not defined and who may not be under-privileged, of course (thought they may still be excluded from some aspects of life). A marginalised community is one that has remained largely outside the social and economic life of Kenya as a whole because it is small, because it is a traditional community that wants or needs to preserve its unique culture and identity, because it is a nomadic or settled pastoral community that is geographically isolated or an indigenous community with a hunter or gatherer economy. A marginalised group is one that has suffered from discrimination on the basis of any of the long list of prohibited grounds under the new Bill of Rights. There is a special article in the Bill of Rights that deals with minorities and marginalised groups: • emphasising that they have all the rights “taking into account their identity, way of life, special circumstances and needs” • saying that there must be special affirmative action programmes to benefit minorities and marginalized groups, and indicating that this means they must o be able to participate and be fully represented in governance and national life o have special educational and economic and employment opportunities o be able to develop their cultural values, languages and practices o have reasonable access to water, health services and transport, and reasonable opportunity to meet their basic needs o be free from discrimination, exploitation or abuse. There is to be affirmative action for the benefit of previously disadvantaged groups in the award of government contracts. 261(2) Art 311

311 44 (1) (2) (3)

Other special mention of these groups is made: • the principle of the inclusion of marginalized communities in the life of the nation 13(2)(i) 30(5) • the need for state organs and public officers to be equipped to deal with the needs of marginalized communities 76(2) • the requirement that there be a Minority Rights Commissioner in the Human Rights and Gender Commission 102 • that the electoral system must ensure the representation of marginalized communities 126 • that the National Assembly include seven members elected by marginalized (1)(d) communities, marginalized groups and workers 222 • that county assemblies must include members of “marginalized groups, including (1(c) persons with disabilities, minorities, older persons and youth, in proportion to the votes received by each political party” 248 • the requirement that the needs of marginalized communities be a factor in revenue 26

• •

• • • • •

sharing between governments the requirement that the national budget include special provisions for marginalized areas, marginalized communities and marginalized groups that the values of the public service include “representation of Kenya’s diverse communities, men and women, members of all ethnic groups, and minorities and marginalized groups, including persons with disabilities, in the public service at all levels” political parties must respect the rights of persons with disability and minorities to participate one of the purposes of devolution is to cater for the needs of minorities and marginalised groups national laws must provide for the protection of minorities at the local levels. Kenya is to be a secular state (though that expression is not used): this means that there must be no official religion, and that all religions must be treated equally However, because of history and the vulnerability of the community, there is special recognition of the Kadhi courts (identical to that under the current constitution, which mentions only the coastal strip, though now there are far more Muslims outside that area than in 1963).

(3)(h) 258 (2) 272 (1)(k) 114 (1)(g) 213(f) 240 10 209

Language and culture Linguistic and cultural diversity are recognised in the draft: • everyone has the right to use the language of their choice • the State must respect the diversity of Kenya’s language and indeed encourage the development of the local languages, as well as sign language • there is not only a right to practice one’s own culture, but a special chapter on culture. 68(1) 9 Chap 5

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Section 15 - Land, environment and resources Land and resources have been major concerns of Kenyans, and indeed sources of strife, and the environment is a matter of concern – including issues of pollution and drought. There are a number of provisions about these issues. Land There is a special chapter on Land and Property (which would benefit from some drafting improvement). Among its important points are: • • • • valuable general principles on land use, management and protection for the nation recognition of concerns of landless and squatters limitation on the possibility of non-Kenyans holding interests in land – must not be more than 99 year lease and setting up of institutions to hold and manage public land, especially the National Land Commission. Chap 7 Art 77 • • • 85 82 84 64

These provisions need to be considered with the right to housing and the possibilities that this offers to the most disadvantaged in society. Environment There is a right to a “clean and safe environment” and to have the environment protected, and to access to information about the environment (essential for citizens to be able to take action to protect the environment and themselves). And there is a chapter on the Environment that will be hard to enforce in a legal way – though it will have considerable political significance. Among the points that it stresses are: • the need for energy saving and use of renewable energy sources • the need for aiming at 10% tree cover (at present Kenyan tree cover is considerably below this) • the importance of public participation in environmental management • the value of traditional knowledge and practices • the duties of the individual in regard to the environment (not really a legally enforceable provision). Resources • stress on sustainable management of resources • a requirement that transactions involving the exploitation of natural resources require the approval of Parliament • detailed provision in the public finance chapter on the distribution of financial resources taking account of need.

67

Chap 8 87(f) 87(i) 87(k) 87(j) 88

91 92 248(3 )

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Section 16 - Implementation and constitutionalism The best constitution in the world is no use if it is not brought into effective operation. Making any constitution effective requires laws, and institutions, and the commitment of the people to use those laws and institutions, too. Another aspect of effectiveness is the need for the constitution to be protected from being changed too easily. Implementation • The Draft requires many new laws – and it provides a timetable for this process, stating which laws must be passed within, say one year or two years. There is the possibility of Parliament giving itself an extension of one year for passing any law. • There is to be a Commission on the Implementation of the Constitution with the task of watching over the implementation process, reporting to the State President and Parliament on progress and if necessary drafting necessary laws • But what happens if the necessary laws are not passed? The Draft is innovative: a person can go to the Constitutional Court to get an order to Parliament and the Attorney-General to take steps within a certain period, and if nothing then happens the Chief Justice must advise the State President to dissolve Parliament, meaning there must be a general election – a real incentive to Parliament to take the necessary steps! • There are also provisions about moving from the old system to the new one: what is to happen to the Provincial Administration, how to deal with the changed in the Judiciary and so on. Institutions for implementing the constitution There would be a large number of new institutions, including various commissions, some of which already exist. Other elements of the Draft include: • A new Constitutional Court, so that there would be constitutional specialists to deal with the cases (appeals would go direct to the new Supreme Court, not the Court of Appeal) • Because going to court is expensive, no court fees may be charged for human rights case • there is a new office of the Public Defender to provide legal assistance to those who can’t afford lawyers (this would apply not just to cases specifically on the constitution, but would be important to protecting constitutionalism). Protecting the Constitution It would be hard to change the constitution: • Any change requires a two-thirds vote in support in each house of Parliament • Changes to certain important parts require support in a referendum: including the Bill of Rights, the term of office of the State President, independence of the judiciary and of the various commissions, and devolution. Sch 6 Art 312(2) 31 3 312 (6)-(9)

Sch 7

20 3 31 195

307 30 6

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Section 17 - Assessment and the way forward The primary purpose of this paper has been to give readers an idea of the main proposals in the Harmonisation Draft and to assess them by reference to the Cardinal Principles established by civil society organisations through Creco as well as the constitutional principles set out in the 2000 and 2008 constitution review Acts. The general conclusion is that the Draft mostly incorporates them. It provides an appealing vision of Kenya as we want it, bonded by an overarching identity and loyalty, caring and just society, and an honest and committed leadership. It proposes a fair distribution of state powers, supported by allocation of resources and revenue based on need and equity. Were it to become law, it would provide strong foundations for the rule of law and the end of impunity. Our view therefore is that Kenyans should support the Draft and make known their positive endorsement to the Committee of Experts and the general public. However, there is no guarantee that the Draft Constitution will become law. There are many hurdles yet to be surmounted. There is, first of all, considerable ambiguity on the steps that must be taken before the Draft is submitted to a referendum. The Constitution of Kenya Review Act 2008 is inconsistent with the Constitution Amendment Act 2008 which inserts section 47A. Under the former, the National Assembly has to approve the Draft before it goes to the referendum, but under the latter, no such approval is required although the National Assembly can propose an amendment to a provision by a 65% vote. As the constitution overrides legislation which is inconsistent with it, the better interpretation is that National Assembly has no authority to approve or disapprove the Draft. Otherwise there is the danger that the National Assembly will usurp the sovereign right of the people to choose their constitution. The next necessary step is for the Committee of Experts to tighten up the text of the constitution, removing ambiguities or unnecessary words, and resolving inconsistencies. This can safely be left to experts using their professional judgment. The Draft will meet a more difficult problem when it reaches the Parliamentary Select Committee on the Review of the Constitution. The Select Committee has, on the basis of the Draft, to deliberate and build consensus on the contentious issues. If a consensus can be built differently from a provision of the Draft, the CoE will have to redraft it. The revised draft goes to the National Assembly which may make amendments to it. Reading both the Constitution and the Review Act together it is not clear whether the CoE has any role at this stage. The Draft (incorporating the National Assembly amendments) is submitted to a referendum. The Draft will only be approved if, in addition to an overall majority, it secures at least twenty-five per cent of the votes cast in at least five of the eight provinces. This complicated procedure makes it highly desirable that a consensus is achieved in the Select Committee. Otherwise the process gets blocked or greatly delayed. However, if there is overwhelming public support for the present Draft Constitution, it is likely that parliamentarians will have second thoughts before tampering with it. It is therefore extremely important that the people should clearly, publicly and loudly demonstrate their support for the Draft if they are satisfied with it. And they should send their endorsement to the CoE. Thinking about the Draft In our view there is room, within the broad framework of the Draft, for improvements in substance and drafting. We hope that these improvements, about which the Committee of Experts will be notified, will be made when it revises the Draft.

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Creco intends, in collaboration with its partners to think about how the Draft can be improved. As with this paper, it will share its proposals with the public and seek their endorsement. Meanwhile readers are encouraged to think about the following issues: 1. Does the Draft strike the right balance between diversity and unity? 2. Does it take sufficient account of poverty in Kenya and ways of overcoming it? 3. Do the levels of government under devolution make sense? 4. Should the present 8 provinces be divided into 12 to 14? 5. Since the President is not going to have the powers of the government, it is essential that president should be directly elected by the people?

6. Is there is risk that the National Assembly will be too unruly and too willing to introduce motions of no confidence? Should some limits be placed on the frequency of the motions of no confidence? Should the motion of no confidence have to specify who would become prime minister if it is successful? 7. Do you think that there should be a separate constitutional court given that we have the common law system under which all courts can examine the validity of laws and administrative acts?
8. Do you think there should be a firmer emphasis on “one person one vote one value”? 9. Do you think that the electoral system at the national level should be changed (e.g. to the

mixed member proportional system or a pure proportional system)? If not do you think that the constitution should leave it open for future laws to change the system without a constitutional amendment? 10. Should the Speaker (or presiding officer in a regional or county assembly) have a duty to declare a member who “crosses the floor” to have lost their seat? Is it too demanding to require a candidate for Presidency to be nominated by at least 100,000 voters (including 5000 from each region)? (Bomas said 1000 in all with 100 from each region) 11. Is it too demanding to require a non-party candidate for election to the National Assembly to be nominated by 1000 voters in the constituency? (Bomas said 500)? 12. Will 18 women members in the Senate (who will have to vote as part of the regional block on matters affecting the interests of the regions and counties) be a useful measure for women? Would it be better to provide for a good proportion of women in the National Assembly (rather than as at present providing for 82 – one from each county – out of what may be as many as 350-400, once new constituency boundaries have been drawn)? If a law is successfully passed to promote the representation of women, should these provisions about special constituencies for women fade away?

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13. It was presumably a tactical decision on the part of the CoE to remove references to women having equal rights to property (an issue used in some quarters to defeat the 2005 referendum draft). General equality provisions should achieve the same result. 14. Some of the details found in Bomas about rights of prisoners have gone, including a statement that women prisoners should be separated from men, and that prisoners have the right to be protected from abuse. 15. Most of the integrity provisions cover only “State officers” the State President and Deputy, Ministers, MPs and members of regional and country assemblies, Judges, members of constitutional Commissions, Attorney-General, Director of Public Prosecutions, Public Defender, Auditor-General, Controller of Budget, Secretary to the Cabinet and Principal Secretaries, and heads of the various disciplined and uniformed services. They do not cover civil servants, though there is a direction that parliament pass law within one year to extend the Integrity chapter to public officers (at both national and regional and county levels). 16. Is it best to have special seats in Parliament for persons with disability or have effective measures to ensure that they are taken seriously as candidates for regular seats? 17. Is it right that a holder of a special “disability seat” in the National Assembly should have only one term in that position? Is the definition of disability adequate? Does it for example include albinism and if not should it do so? 18. Should all judges resign and be re-appointed only after their name has been cleared> 19. When do you think the elections should be held if the new constitution is passed in May 2010? Acknowledgments This paper has been prepared by Jill Cottrell and Yash Ghai in conjunction with the Technical Committee of the Constitution and Reform Education Consortium (CRECO) and with the support of Uraia

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